30 September 2005

The solution to judicial activism

Well, John Roberts is our new Chief Justice. I for one am glad, though many conservatives are not because of failure to assert a strong position on Roe. Then again was his refusal to answer question about hypothetical cases.

My friend and former seminary classmate, Lee Johnson, chided Republicans in a recent post:

Is Roberts a Thomas or a Kennedy? I fear that the hearings will be pointless. I fear that Republicans will try to argue you should not get to vote against a judge because of judicial philosophy, which is why Republican overwhelmingly approved Ruth Ginsburg. Then they turn around and whine about judicial activism. "Thoughts on John Roberts," Two-Edged Sword, 10 September 2005, www.twoedgedsword.blogspot.com.

Lee, the answer to judicial activism is not in the confirmation process. Judicial activism is, by definition, something that judges engage in; it is something that they do. And as we have seen, it is difficult to talk about solving the problem when there are those who want to pretend that they don't know what the definition of judicial activism is. (Or, worse, they really don't know what the definition is.)

Since judicial activism is something that judges do, the solution to judicial activism is judicial restraint. Judges must restrain themselves; there can be no prior and external restraint placed on judges by either a president or the senate. The reason is that we now live in a culture of power politics, as opposed to legal politics. What I mean by that is that it is acceptable for people in office to do things because they have the power to do, not because they have the legal authority to do (as long as what they do is for the little guy). Right now, judicial activism is as much a part of our culture as reality TV. And, like reality TV, judicial activism began with a small, almost inaudible shot (in Marbury v. Madison), before it became the avalanche it has been since just about the Warren Court. I'm sure putting an end to it won't be an overnight task.

To try to use the confirmation process at this point in history, is engage in more power politics. We have the Senate; we have the Executive. Our nominees get in. And, while they ought to get in on the basis of judicial philosophy, the people don't know enough about federalism (thank you, NEA, multiculturalists, and, well, leftists, generally) to know how significant a thing judicial philosophy really is.

So here, Lee, is why Republicans can at the same time confirm nominees and "whine" about judicial activism: the Constitution says that the President gets to appoint judges with the advice and consent of the Senate; it is judges, not the Senate, who must end the activism. The "advice and consent clause" is not about examining a nominee's judicial philosophy; it is about checking cronyism. That's what the Federalist papers say, anyway:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration. (Federalist 76,para. 9)

Only outright crooks, not people with whom we disagree philosophically, ought to be denied a seat on the Court. To do otherwise is simply to use raw political power to try to effect a predetermined outcome, which is what judicial activism is. And even if I wanted to concede that the Senate could put some sort of check on judicial activism, that will be very difficult to do until our culture is arrayed against such activism. Right now, that it not the case. In order for it to one day be the case, we shall have to educate the public about federalism...and the Calvinist world and life view from which it comes.


About Me

James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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